2005 CPEO Military List Archive

From: Lenny Siegel <lsiegel@cpeo.org>
Date: 22 Mar 2005 01:05:49 -0000
Reply: cpeo-military
Subject: [CPEO-MEF] ASTSWMO letter on Air Force Performance-Based Policy
[Earlier this month, Illinois regulator Clarence Smith sent the following letter to the Air Force on behalf of the Association of State and Territorial Solid Waste Management Officials.]

March 4, 2005

Ms. Maureen T. Koetz
Department of the Air Force
Deputy Assistant Secretary of the Air Force (Environment, Safety & Occupational Health)
1665 Air Force Pentagon, Room 5C866
Washington, DC 20330-1665

Dear Ms. Koetz:

The Association of State and Territorial Solid Waste Management Officials (ASTSWMO) Federal Facilities Research Subcommittee developed this letter in response to your October 27, 2004 memorandum entitled "Air Force Cleanup Program Performance-Based Management Policy". Although we appreciate the need for the Department of the Air Force (Air Force) to control site clean-up costs, some elements of this policy, as well as the exclusive manner in which the policy was formulated, are of significant concern.

Federal and State regulators are valuable partners in developing a program structure that allows the Air Force to meet its policy goals. The regulator community has a vast amount of information and experience regarding successes and failures (i.e., "lessons learned") of performance-based management strategies. States believe that if the Air Force were to evaluate reasons for cost escalation in past cleanup efforts, it would be evident that disagreements with regulators on cleanup decisions and methodologies would be a significant factor. Therefore, it is reasonable to conclude that development of this (and other) policy (or policies) without consulting environmental regulatory entities is a blueprint for failure. Inclusion of Federal and State regulators would allow for development of a more robust policy with more accurate goals, a greater chance of regulatory compliance and agreement, and therefore lower future costs.

The policy states that cleanup goals and response actions should follow future resource designations because it is inappropriate to commit to residential standards for sites located in commercial or industrial areas that are not anticipated to change to residential use. First, it is inappropriate for any policy to predetermine land use. It is a faulty assumption that land use of any given parcel will remain unchanged in the future. As we all know, there are great pressures to develop almost any parcel of unprotected land, and for a variety of land uses. There are no cleanup programs in the country that allow for an assumption that the current land use will remain unchanged.

The subject policy should not be founded on such an assumption. Rather than predetermine that the current land use will remain as-is, the policy should include a mechanism to determine the credible future land uses. Further, the policy should require that any evaluation of (only) cleaning up to a restricted land use include the future liability of being required to perform additional cleanup if the land use changes, in accordance with Section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA or Superfund). In addition, any policy that supports restricted uses must also address the full range of issues involving land use controls. These include the implementability and enforceability of the control, and the funding to maintain these controls in perpetuity. State and local authorities must be recognized in this regard, as they are often the only jurisdictions that can impose land use controls.

Perhaps the most troubling aspect of the policy is the discussion of Applicable, Relevant, and Appropriate Requirements (ARARs), which is contrary to the way ARARs are handled in every other remedial effort based on CERCLA (and contrary to the CERCLA statute itself). The Air Force policy first attempts to waive every ARAR possible, and then crafts a remedy that only has to meet this watered-down list of requirements. Programs that seek to provide protective cleanups operate in a manner that is just the opposite. First, a comprehensive list of ARARs is generated. The agencies then attempt to devise remedial actions that meet all of the ARARs. Only if a protective remedy cannot meet select ARARs is a waiver contemplated.

Attempting to waive ARARs in the mechanism and magnitude proposed by this policy is a recipe for disaster. It will instigate long and acrimonious arguments with Federal and State regulators, and therefore is sure to drive up costs. Decisions on ARAR waivers should be accomplished at the project level, not in the Pentagon, use existing procedures, and must incorporate input from the regulators and other stakeholders. The current policy severely undermines the relationships between the Base Environmental Coordinators and the Federal and State regulators, and should be removed from this policy.

In order for any environmental cleanup policy to be successful, stakeholder buy-in is essential. This policy appears to have been developed in a vacuum, without input from States or the United States Environmental Protection Agency. This is particularly troublesome in light of some of the far-reaching directives that are expressed. In essence, this is a manifesto that embraces lead agency authority and rejects the partnerships that have been developed with environmental regulators since the inception of the program over almost two decades ago. We believe this policy will not achieve the cost savings you seek due to several provisions that will create lengthy disputes on every site in the Air Force inventory. We strongly recommend that you rescind this policy, and begin stakeholder outreach on the creation of a replacement.

If you should have any questions, need any additional information, or wish to discuss this matter further, please contact me ....


Clarence L. Smith, Chair
ASTSWMO Federal Facilities Research Subcommittee
Association of State and Territorial Solid Waste Management Officials
444 North Capitol Street, NW
Suite 315
Washington, D.C. 20001

Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918

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